The right to belong

November 27, 2022

The rules governing extension of citizenship to foreigners are very complicated

The right to belong


itizenship and nationality are two distinct labels thatconfer different rights and imposedifferent liabilities on their holders.

Nationality refers to a person born to parents in a state to which they belong. International law recognises the attribute of a person belonging to a state as nationality, with certain rights and obligations that the laws may prescribe.

On the other hand, citizenship refers to being a citizen of a particular country.Citizenship is legally acquired after fulfilling eligibility criteria, which vary from country to country. Citizenship is a term of municipal law –municipal law regulates the relationship between a natural person and a particular state and confers civil and political rights corresponding to thoserelationships.

Jus soli, a Latin term which translates to‘right of the soil,’ is commonly used to refer to the idea of birthright citizenship, which is the right of anyone born in the territory of a state to citizenship of that country. Jus soli is a part of English common law, in contrast to jus sanguinis, or blood based citizenship, which dominates the legal systems of mainland Europe.Under the doctrine of jus soli, a person acquires the citizenship of the state of their birth regardless of the citizenship of their parents.

In Pakistan, citizenship is afforded by birth, by descent (in other words by blood), by migration and by marriage under Sections 4,5,6,9 and 10 of the Pakistan Citizenship Act, 1951. Under Section 4 of the Act, citizenship is provided to every person born in Pakistan subject to two conditions provided by provisions of the said section. Section 4 is in conformity with the doctrine of Jus Soli and Article 15 of the United Nations Declaration of Human Rights.

Citizenship by birth is granted by several countries of the world under the Jus Soli doctrine. These include Pakistan, America, Brazil, Canada, Fiji, Cuba and England.The 14th Amendment in the American constitution grants citizenship to any person born within the United States.

The Pakistan Citizenship Act, under Section 10, provides citizenship to a woman married to a Pakistani man. However, the same section restrains the government from affording citizenship to a foreigner married to a Pakistani woman. Such discrimination is in violationof the clauses related to equality and due process in the constitution, including Article 25 and Article 4.

The Pakistan Citizenship Act allows a woman married to a Pakistani man to become a Pakistani citizen, but not a man married to a Pakistani woman.

Sections 4 and 10 of the Pakistan Citizenship Act are therefore inconsistent with Article 25 and Article 4 of the constitution. The said sections provide citizenship to a child or female, based on the citizenship of the father or husband. But citizenship cannot be claimed as a matter of right based on the citizenship of the mother or wife by a foreigner husband or child who is married to or born to the Pakistani woman.

Article 8 of the constitution specifically provides that any law inconsistent with fundamental rights is to be declared null and void because the constitution protects the inalienable rights of every individual. The parliament is under an obligation as per the mandate of Article 8(4) of the constitution to bring laws into conformity with the fundamental rights provided by the constitution.

Section 10 of the Pakistan Citizenship Act has already been declared unconstitutional and un-Islamic by the Federal Shariat Court of Pakistan in suo motu case No 1/2006 (reported as PLD 2008 FSC 1). But till date, the said section has not been properly amended by the parliament. This amounts to contempt of court under Article 204 of the constitution.It also amounts to recklessly depriving deserving citizens of Pakistan of their precious right.

The Citizenship Act and Rules relating to ‘foreigners’ born in Pakistan or married to Pakistani women are very strict and complicated. On the other hand, Section 11 of the NADRA Act 2007 and Rule 4(5) and Rule 5 of NADRA (Pakistan origin card Rule ) 2002 provide Pakistan Origin Cards to foreigners married to Pakistani women or born to Pakistani women, conceding their connection to Pakistan.

The POC is issued by the NADRA on fulfillment of certain conditions.In some ways it isequivalent to the NIC in practical use. Rule 17 of NADRA Pakistan Origin Card Rules provides several rights to POC holders. The card holder can stay in Pakistan till the validity of the card without any interference from the police or foreigner registration office. They can enter Pakistan without a visa, can open a bank account, can sell, hold and dispose of movable and immovable properties throughout Pakistan and can use the POC for establishing their identity anywhere in Pakistan where an NIC is required for the purpose. It will make sense to provide these individuals with NICs and do away with the unnecessary parallel that only kicks the can down the road.

The writer is an advocate of the Supreme Court of Pakistan based at Peshawar. He has an LLM in constitutional law

The right to belong